Kiwi Three Strikes Tribunal Fines Soldier Who Was Serving In Afghanistan When Infringement Happened

from the manifestly-unjust dept

G Thompson was the first of a few of you to send in this story about the latest "three strikes" Tribunal hearing in New Zealand, in which the Tribunal ruled against a guy, despite the fact that he was a soldier in the NZ Armed Forces and deployed in Afghanistan at the time the various accusations of infringement occurred. Upon getting the third strike, having just returned from his tour of duty, he sent the tribunal a letter, noting that it was impossible for him to determine who had actually infringed, as he was away fighting for the country and there had been a number of flatmates in the place during the time of the accusations, such that it could have been any one (or multiple ones) of them downloading infringing material. Still, he agreed to "accept responsibility" because it was his account. That's an honorable thing to do, though it's simply ridiculous that he should have to do that, since he is clearly not at fault.

I have just returned from deployment overseas [in] Afghanistan and was not aware of music being downloaded. It is very difficult to determine who in the household is responsible for downloading music as flatmates are currently deployed around NZ.

However I understand entirely that I am the person who is held liable for these actions. I have spoken to the pers [sic] who have access to my internet IP address, and between 8 pers, we cannot determine who is fully responsible.

I ask that this notice be a lesson to those in my household as they now understand how severe the consequences may be for committing such an act. I do not wish this situation to grow any more than it needs to be. I am currently going through transitioning from military life in Afghanistan to life back home in NZ, and I'm not fit to tackle this allegation made against me.

However, I take full responsibility for the acts committed under my IP address and wish for this to be resolved asap. I am willing to co-operate by any means required of me.

And yet... the Tribunal still made him pay $255.97, despite not doing anything. The breakdown was $200 to reimburse the RIANZ for the application against him, $50 in fees, and another $5.97 for the "price" of the 3 songs on iTunes. Of course, since he wasn't the one who downloaded the songs in the first place, it seems ridiculous that he should have to pay for those songs, let alone the various other fees.

As Rick Shera points out in the link above, the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:

So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust. Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner. Difficult for the Tribunal though without any argument on the point being presented by the Respondent.

I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account. I think this case underlines that. I find it hard now to imagine any circumstance that will invoke this protection for an account holder.

Pretty clear the "manifestly unjust" element is just for show

They didn't use their "out" because they don't want to be accountable for any judgment whatsoever. Regardless of the clarity of this specific situation, I'm certain that they fear letting anyone off of the hook lest they have to let everyone off the hook since we all know that 95% of the cases will fall squarely in the grey area and require subjective analysis.

But that also means they have to jettison any idea of fairness or justice because once you are "accused" you are effectively guilty. What a travesty.

Re:

Actually, every single person involved int his farce of a tribunal should be charged with High Treason, on account of betraying the principles of the country. And then....they should hang. Everyone involved in this. Even those in the US who were involved.

It's easier

Of course they're going to go after people while they're in other countries or stationed abroad. The accused don't get the opportunity to fight back on the first strike. They rack up all three while stationed overseas and a "You need to appear in our office by this time or you're automatically guilty." notice lying on his doorstep.

Re: So you've come out against personal responsibility!

So if I get into a car accident and unexpectedly have to spend months in the hospital, unable to come home, and my neighbors all start using my Internet to download illegal songs I'll be charged 42.8 times the value of the songs they illegally downloaded?

Sounds a lot like the outrageous prices hospitals charge for a single pill of over the counter Advil or Tylenol.

Re: So you've come out against personal responsibility!

So using the 6 degrees of separation principle, somewhere you know a criminal and possible a very bad one at that, or even worse... a copyright thieving pirate down loader. I suggest you immediately turn yourself in and claim responsibility. Oh and pay a couple of million rand in compensation. That should make it right.

Re:

Not here since it's not actually a criminal offence (even if criminal it has to be a fasle confesion for intent to decieve on a serious offence)

Though it is either stupid, heroic or ethical dependant on the context.

Here he was trying to be ethical though all legal advice would of been to explain that it wasn't him, for the absolute proof he was out of the country at the time and therefore it was either an unknown flatmate, an unknowable guest or a 'hacker' it is up to the tribunal to prove.

Problem here is he admitted guilt.. you can take the soldier out of the country but you can't take the sense of obligation to tell authorities everything and they will always be equitable out of the soldier.

Re:

no. If you look at the breakdown, $250 was the equivalent of costs ( $200 to bring the application, $50 in fees) the actual fine part is the price on iTunes. I assume the $250 part is fixed. Therefore, you would be charged the price of the songs, plus $250.

What I would do in this case is tell the flatmates that their access to my internet was gone until whoever downloaded the music paid up. (and when they admit it, tell them to use their own internet connection in future)

Seems pretty cut and dry. He chose not to fight it because the fine amount was less than the cost of fighting it. This should give people pause, because it's clearly intentionally the way this is set up: they get to fine you arbitrarily based on unproven accusations, and your two choices are pay up, or pay more to fight it. It's going to force a lot of innocent people, like this person, to admit guilt when there is none.

Good example of the shameful behaviour brought about by and which will be the death of the **AA type organisations and the companies most invested in them.
Politicians on the wrong side of this issue will also find themselves wondering what happened to their careers and will find it hard to believe they lost them due to addressing imaginary problems while ignoring the real harm being caused by legislating for delusion, it has after all worked so well for so many other areas. But they will lose them because the fallout from the legislation to address fictional problems affects everyone, not just a minority grouping and the companies that push for this bizarre copyright enforcement will lose their businesses and it will be the rare person from either group who will ever understand where they went wrong.

Re: So you've come out against personal responsibility!

No. This is bad. He may be the type of person who sees this as his responsibility because he may feel he should have prevented it, but it isn't the same thing as him being responsible for the actions of another.

If someone takes my car and runs someone over, I can feel bad about allowing them to use the car, but it was not my action or inaction that caused them to do it. That is too far a stretch of transference. (And I am assuming the individual I loaned the vehicle to was someone who was legally able to drive and not knowingly impaired)

After you extract the RIANZ cost of everything and then add in the awarded cost of NZ$255.97 you find that the RIANZ are actually out of pocket by $20 with NO WAY TO EXTRACT THAT EVER!

With the 5 cases under it's belt already the Tribunal has awarded standard rates of basically what the music would normally cost to download PER Song (not per instance) and the standard tribunal costs etc.

It's not the damages the RIANZ (and its puppetmaster the RIAA) wanted, nor will it ever likely to be.

Karl Schaffarczyk, a law student at University of Canberra just wrote a nice article about all this and how the damages and Strike system is basically useless, not what the Industry wanted at all and why it will most likely ever ever reduce piracy

Re: Re:

The cost to him was the total cost, you can break it up how you like, explain it how you like, but the cost to him for the supposed download of three songs was 255.97, even the 5.97 portion probably includes sales tax. Do we argue the songs only really cost 5.97 less gst (5.19).
Making the total charge over 49 times the purely imaginary loss due to the downloads.
People who bring applications should pay for them themselves, if 5.97 wouldn't make it worth their while then perhaps they wouldn't waste everybody else's time and money pandering to these delusions.

Re: So you've come out against personal responsibility!

Can you prove responsibility? A man accused is not a man proven guilty. A bad law is not a moral law. and an OOTB comment is not a comprehensible comment.

He chose to assume responsibility for the actions taken on his IP. Dumb but admirable of him.

HE WAS NOT responsible for those actions.

I come here and read the articles (agree with some, disagree with others) and only read sporadically through the comments; but every time I would like to read a whole comment thread, I see your comments at the top of the page, and wonder, how in the world an idiot of your ilk could actually type.

Re: Re:

Prosecutorial misconduct?

the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:

Just shows once again that prosecutors and the courts will go for the maximum sentence every chance they get just like with Aaron Schwartz.

Re:

It is pretty ridiculous! The costs for the RIANZ is higher than what they get from even trying the cases. The cost of defending against the allegations would be far worse than just pure admission no matter what!

This is not justice, this is the courts getting some work because of an organisation believing the chilling effects of this is worth the loss they take on runnning the trial... This is a more than perfect example of the classic "in any trial, everybody lose except the court."

Re: So you've come out against personal responsibility!

What people are opposed to is that you have no responsibility or accountability when it comes to suing random people. It is especially disturbing that you don't care who gets sued, even when it's someone clearly completely innocent.

And people wonder why copyright gets no respect. Guess what, bucko - Shylock also went the route of demanding his pound of flesh, and look how that turned out for him!

Re: So...

I think it's especially telling that in both France and New Zealand, the few people brought to justice are precisely the people who didn't do it. It's the RIAA suing everyone all over again; no sense of accuracy or accountability.

Computer Tech View

more than anything, to me, this shows that as long as a court can fine the easiest person possible, being guilty or not doesn't come into the equation. it shows exactly how far the various entertainment industries have perverted the course of justice, just to make it clear that they still have control, if not of their own material, if not to prevent downloading but of the politicians, law enforcement and 'justice system' (i use the last term extremely loosely!) the court could have made a much higher award, but also could have made a much wiser decision but chose not to. that doesn't bode well for the future. this guy could not have committed the 'crime' and had no way of preventing others from doing so but is now an internet 'criminal', thanks to those ruling being too lazy to adhere to the law and find then rule on truth. disgraceful exhibition!!

This is just another example of what a kangaroo court looks like. That the tribunal had the power to make right what was an obvious error and failed to do so, shows you just how the rest of these will play out.

Do not think that the 6 strikes in the US will be any different. The RIAA has already been busted once on the supposedly non-biased parties involved in this. To be sure the deck is already stacked before anyone is accused.

So far their batting record for accuracy by articles already posted is just as bad as it ever was. This is why guilt by accusation totally fails. In the long run I really hope this drives people to refuse to pay for the entertainment offered in stores as a payback method.

Re:

Re: Re: Re:

My point is that, the formula for calculating charges is $250 + (nv) where n= number of songs and v= value of one song NOT 49nv

the award of costs to the loser is actually pretty standard in court cases (it might be different in america) and the rationale is that the compensation is supposed to put you in the position you were in before the tort was committed. If costs were not awarded, then you would leave the plaintiff worse off than they were before the tort was comitted. So no, eople who bring successful applications shouldn't ahve to pay for themselves ( especially since it could easily be an individual, not a big media company)

Re: Re: Re: Re:

Au contraire, anyone who wants to waste hundreds or thousands of dollars to 'recover' 6 bucks worth of anything but especially digital anything should have to pay all the legal costs themselves. It can only lead to frivolous and harassing actions if they do not have to.

Well, if your kids break a window, you pay for those damages as well, doesn't matter if you were there or not. So if you let others use your internet connection in a country where you are by law liable for everything that happens from your access point IP-adrdess, you have to pay for those damages as well. I don't see what's the problem here? (Except that internet access points should be open for everyone all the time without any liability for the access point provider, as it's just one link in a chain of services, but that's a whole different story.)